TBJ January 2022

2021: The Year in Review

Personal Injury Law

Written by Julian C. Gomez

2021 was the year of perseverance. The Texas personal injury bar saddled up, drew on its hardy, hardworking roots, and found solutions.

Below is a summary of the Texas Supreme Court’s 2021 personal injury-related opinions and a few other statewide changes from this past year.

COVID-19 COVID-19 continued to dominate personal injury law in 2021. Videoconference hearings, depositions, mediations, and trials became mainstream. To some degree, videoconference appears to have created a seismic shift in how we will practice even after COVID-19 is behind us. Texas trial courts dipped their toes in the water and began trying cases again, many in person. And our appellate courts consistently churned out opinions almost without interruption.

The 87th Texas Legislature
Legislators, lobbyists, and constituents converged on Austin for the 87th Texas Legislature. House Bill 19, the commercial motor vehicle bill, may have been the highest-profile personal injury bill to become law. We will feel HB 19’s and the other new laws’ effects in the coming years.

No Control, No Duty
In two cases involving independent contractors—one technically in 2020 but published after last year’s summary went to press—the Texas Supreme Court reaffirmed the long-held rule that duty depends on control, finding no liability in one¹ and liability in the other.²

Section 18.001 Affidavit Practice Clarified
Analyzing a superseded version of Texas Civil Practice and Remedies Code § 18.001, the court clarified Section 18.001 affidavit practice in In re Allstate Indem. Co.³

Facilitating a Sale Is Not the Same as Being a Seller
In a certified question from the U.S. Court of Appeals for the 5th Circuit, the Texas Supreme Court, in Amazon.com, Inc. v. McMillan,⁴ held that for purposes of Texas products liability law, an online retailer even though it may facilitate the sale of a product is not a “seller” so long as it does not acquire or transfer title to the product.

Power Lines PI Cases Belong in Court
In In re CenterPoint Energy Houston Elec., LLC,⁵ the court held that personal injury cases involving power lines could be litigated in courts and that the Texas Public Utility Commission did not have exclusive jurisdiction.

Product Liability Pattern Jury Charge Was Not Defective
In Emerson Elec. Co. v. Johnson,⁶ the Texas Supreme Court held that the trial court’s use of the Texas Pattern Jury Charge for design defects, which does not expressly state the “Grinnell⁷ factors” verbatim, did not cause the jury to render an improper verdict and justify a new trial.

1983 Claims Are Subject to TMLA’s Early Expert Report Requirement
In Rogers v. Bagley,⁸ the Texas Supreme Court held that 42 U.S.C. § 1983 does not preempt the Texas Medical Liability Act and its early litigation expert report requirement so long as the 1983 claim is a health care liability claim.

Underinsured Motorist Benefits and Declaratory Judgments
In Allstate Ins. Co. v. Irwin,⁹ the court held that insureds could establish an insurer’s liability for underinsured motorist benefits via a declaratory judgment action and could recover attorneys’ fees via the Uniform Declaratory Judgments Act.

Health Care Providers’ Non-LOP Rates Are Discoverable and Relevant
In two different cases, In re K & L Auto Crushers, LLC¹⁰ and In re ExxonMobil Corp.,¹¹ the Texas Supreme Court held that when a requesting party narrowly tailored their discovery to focus on rates for the same health care services, the health care provider’s non-letter of protection rates were discoverable and relevant to whether their rates were reasonable.

Protection of Lawful Commerce in Arms Act Bars Firearm-Related Suits
Finally, in In re Academy, Ltd.,¹² the court granted mandamus relief, found that extraordinary circumstances existed, and directed the trial court to enter summary judgment because the federal Protection of Lawful Commerce in Arms Act barred firearm-related suits.

JULIAN C. GOMEZ is the managing member of the Julian C. Gomez Law Firm, a member of the Texas Trial Lawyers Association Executive Committee, vice-chair of the American Association for Justice Technology and Science Section and a member of its Products Liability Section Executive Committee, and a member of the Attorney Information Exchange Group president’s cabinet. He previously served as a law clerk to Judge Reynaldo Garza, of the U.S. Court of Appeals for the 5th Circuit, and Judge Filemón Vela Sr., of the U.S. District Court for the Southern District of Texas.